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Would a 'spy code' with Indonesia really work?

By Professor Ben Saul. First published in ABC The Drum Online.

6 December 2013

Professor Ben Saul

In the wake of Australia spying on the Indonesian president, Indonesia demanded that Australia formally agree not to spy on it in the future. It proposed that such a guarantee would be in a code of conduct governing the bilateral relationship generally.

Indonesia sees the code as a precondition to resuming full cooperation on security and law enforcement, including people smuggling and terrorism. Such cooperation was badly damaged by Australia's clumsy and insensitive response to the revelations, which inflamed Indonesian anger and harmed Australia's interests.

Australia has not yet committed to a code of ethics but has agreed to talk to the Indonesians. The question is whether a code would be capable of effectively regulating espionage between the two countries, or would not be worth the paper it is written on.

Countries typically make agreements because they have a reciprocal interest in regulating an issue. The agreement need not be equally important to both countries, but it must be sufficiently important to each side to make it worth it the effort of negotiating and respecting it.

Indonesia wants spying to stop. Australia is less concerned about Indonesia spying on it, because Indonesia's technical capabilities are more rudimentary and Australia's defensive capabilities are more sophisticated. Looked at narrowly, Australia certainly benefits from the absence of bilateral restraints on spying.

But Australia cares deeply about cooperation on people smuggling, terrorism, and trade. It also benefits greatly from Indonesia sharing its own intelligence with Australia, which is far more valuable to Australia than whatever intelligence on Indonesia that Australia is able to unilaterally collect. This is so despite the technological advantage Australia enjoys, because Indonesia has much better human and operational intelligence inside Indonesia than Australia is ever capable of acquiring by itself.

Both countries therefore have an interest in reaching an agreement. But the form and content of the agreement also matters. There is scant detail about the proposal so far. For instance, a code of conduct could be a non-binding statement of principles, intended to guide behaviour, or a legally binding treaty.

The former would undoubtedly be easier to secure, which is why it is commonly used for building confidence and cooperation where countries would not yet be prepared to commit to a treaty. In many areas, non-binding guidelines effectively influence behaviour, including because they may reflect shared political or moral commitments, or reciprocal advantages for both countries.

The downside of guidelines is that countries may feel no obligation to respect them where they conflict with other national interests, or where there are no binding legal consequences for breaches. By contrast, a treaty has the force of law and Australia would be required to respect it.

But it does not necessarily follow that a breach of a treaty will result in meaningful legal sanctions. It can depend on whether the treaty itself allows for binding judicial settlement of disputes. Many countries, including Australia, are reluctant to accept independent judicial scrutiny of their actions.

This is particularly the case in the sensitive area of national security, where countries are normally not prepared to disclose their secrets to outsiders. It is no coincidence that, this week, ASIO detained and pulled the passport of a former ASIS officer who intended to give evidence at a court in The Hague about Australian spying on Timor Leste, during oil and gas treaty negotiations.

Also, if a court or tribunal has no power to rule on breaches of a treaty, there is usually no possibility of enforcing remedies against a country, such as by requiring it to pay compensation. Money hurts.

It is also a problem where countries deliberately flout their international obligations. Even where Australia has committed to binding treaties, such as those on human rights and refugees, Australia serially violates its commitments. Earlier this year, the UN Human Rights Committee found that Australia was illegally detaining, in a cruel, inhuman or degrading manner, almost 50 refugees on security grounds. The refugees are still in detention. More have attempted suicide since the UN's ruling. The Australian government couldn't care less.

Perhaps the critical difficulty for any code of ethics on spying between Australia and Indonesia is verification.

Indonesia can only be confident that Australia is not spying on it if there is some mechanism or procedure in place for verifying if Australia is respecting its commitments. Realistically, there is zero chance that Australia would allow Indonesian intelligence officials, or independent third parties, to inspect its intelligence gathering facilities, whether based in Australia or in our embassies abroad. They are simply considered too sensitive to expose to foreign eyes.

If that is the case, the best Indonesia could hope for is a periodic Edward Snowden to come along and blow the whistle. Even that is in jeopardy, with the Australian Government attacking the ABC for simply reporting the story. The current Attorney-General, George Brandis, may be a fan of traditional common law liberties, but it seems this does not include freedom of the press, the right to privacy of foreigners, or the rule of law in international court proceedings where Australia is being sued.